Effective Date: October 2019
YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 8 TO RESOLVE ANY DISPUTES WITH INDUSTRIAL MEDIA (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT).
1. Your Account
Please ensure that the Personal Information you provide when you register is correct and complete and that you inform us immediately of any changes to that Personal Information. You can access and update the information you provide to us through your account on the Platform.
Use of Your Account
You are responsible for all use of, and for protecting the confidentiality of the login details for any account you set up with us, and you may not share such login details with anyone. If you fail to comply with the above obligations, we will not be responsible for any losses you suffer as a result. You must notify us immediately of any unauthorized use of your account or any other breach of security regarding any transactions that you make through the Platform that comes to your attention.
We reserve the right to terminate access to this Platform, your account (if you have one) and/or this agreement at any time with or without cause or notice to you. Any person who holds such a suspended or terminated account must not seek to use or re-register on the Platform without our prior consent.
Termination of this agreement shall not affect the rights or obligations accruing to either party prior to such termination.
2. Intellectual Property
All intellectual property rights in the Platform and all material or content made available by us by means of the Platform remains at all times our property or the property of our licensors.
Any names, images and logos identifying us, our Affiliates, partners or third parties and our or their products and services contained on the Platform are proprietary marks and may not be reproduced or otherwise used without express permission. The unauthorized use of any trademark displayed on the Platform is prohibited.
Nothing contained in these Terms shall be construed as conferring by implication any license or right to use any trade mark, patent, design right or copyright or other intellectual property right belonging to us or to any third party.
Third Party Content and Software
Where content, information, software, advertising and any other material or services are supplied by third parties, you acknowledge and agree that we cannot control and do not purport to endorse such content, software or services in any way. All third party content, software or services that are made available through the Platform are offered in good faith but we do not (to the extent permitted by applicable law) accept any responsibility for the accuracy, reliability, timeliness, or otherwise of such content, software, advertising or other material or services (whether published on or offline) or for the use, download and/or installation of such content, software, advertising or other material or services.
Where content, information, software, or other material or services are supplied by third parties, you may need a license from such third parties, and may need to agree to other terms and conditions, which will govern your relationship with such providers in relation to your use of such content, information, software, or other material or services. You should read those terms carefully and ensure that you are willing to be bound by them before you use any such content, information, software, or other material or services.
From time to time, we may make it possible for you to submit text, still images and other content to us through the Platform and/or for possible inclusion on the Platform (for example in a chat room, forum or comment entry field). Subject to your compliance with these Terms, you may make such submissions at any time that the Platform enables you to do so. However, the fact that you may make such submissions does not guarantee that they will be considered by us or others or that they will appear on the Platform.
You may only submit audio or video materials to the Platform when specifically invited to do so by us.
If we do invite you to submit any audio and/or video material to us, you acknowledge and agree that you will accurately follow any and all instructions that may be provided to you. Specifically, if we provide a script for you to follow, you agree not to edit, add to or deviate from such script.
If we do request that you send us audio or video materials, your submission of these materials will be subject to these Terms.
If you submit any material to us, whether text, still image, video, audio or any other form, and whether solicited or not, you acknowledge and agree to the following:
• You promise that you are the sole original owner of any submission you provide to us. If you are not the sole original owner of the submission, you represent and warrant that you have the necessary rights, licenses, consents, and permissions required to make the submission to us and to authorize us to use it.
• You promise that you have obtained the permission of any individual featured or referred to in your submission (and if any are under 18, their parents or guardians as well) such that we may use your submission.
• You agree to provide us with copies or other evidence of all such licenses, rights, consents, and permissions upon request.
• You acknowledge and accept full responsibility for the contents of any material you submit.
• By submitting material through the Platform, you grant us and our Affiliates a perpetual, world-wide, royalty-free, irrevocable license to use, edit, reproduce, record, modify, translate, distribute, play, perform, publish, broadcast, make available, prepare derivative works from, to display your submission by any medium or method, whether now known or later developed, and to use your submission in any other way we deem fit. Such right is to be exercised in our sole discretion for the full term of copyright and other rights and all renewals and extensions thereof including, for the avoidance of doubt, the right to register any design rights and/or trademarks.
• If you are resident in a jurisdiction which recognizes moral rights in certain works, to the extent permitted by the law of that jurisdiction, you agree to waive your moral rights in any submissions you make through the Platform.
You agree that you will not:
• use the Platform to post or transmit any material of any kind which is unlawful, harmful, threatening, abusive, offensive, harassing, defamatory or vulgar or which is objectionable on the grounds of race, ethnicity, religion, gender, sexual orientation, age, disability or otherwise or which infringes any laws or the rights of others;
• upload files that contain viruses, “Trojan Horses”, worms, cancelbots, corrupted files or other such similarly destructive features or otherwise in any way damage, disable or impair the operation of the Platform, or attempt to do any of the same;
• gain or attempt to gain unauthorized access to the Platform, or to networks connected to it, or to any services or content delivered through it, by any means, including by hacking, spoofing or seeking to circumvent or defeat any firewalls or other technological or other protections or security measures.
Other than those materials we specifically request, we do not accept or consider unsolicited creative materials, ideas or suggestions either via the Platform, email or other means. This is to avoid any misunderstandings if your ideas are similar to those we have developed independently.
However, if you do still transmit to us, via the Platform, email or otherwise, any unsolicited communication or material, you will be deemed to have granted to us the same rights as are set out in the above section, as if you had made a permitted or solicited submission to the Platform.
In addition, you agree that we and our Affiliates are free to use any ideas, concepts, know-how or techniques contained in any communication you send to us for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information, without payment to you.
If you violate any of these Terms, your rights will immediately terminate and we may terminate your access to the Platform without notice to you, if applicable.
Your Use of the Content
Provided that you comply fully with these Terms, we and/or our licensors grant you the right to access, view and, to the extent that we enable download functionality, download the content that we make available through the Platform, for your personal and non-commercial use only. We may restrict the extent to which you can view, back-up, transfer to other devices or otherwise use such content.
Except as expressly provided in these Terms, you may not copy, reproduce, sub-license, republish, distribute, transmit, publicly perform, display or make available, alter, adapt, interfere with, create derivative works from, counterfeit or paste to any other website or webpage, by any means or in any manner, any content provided or made available on or through the Platform, or do anything else with such content. You agree and acknowledge that you will not acquire any ownership rights in the content. You acknowledge that modification of any content or use of any content for any purpose not expressly permitted by these terms and conditions may breach our and others’ copyright and other proprietary rights.
You agree that you will not use the content, information, material, software or other items or services available on this Platform for any commercial or illegal purpose or for any other purpose prohibited by these terms and conditions or in any notice contained within any content, information, material, software or other item.
Access to and Provision of Content
Your ability to view and/or download content, information, material, software or other items or services may depend on your geographical location, and whether you have appropriate technical equipment, including connectivity and bandwidth, available to you to download and view content properly, as well as other factors. Before purchasing paid-for products, content, materials or other Items or services, we recommend that you check, and you are responsible for checking, that you have all necessary equipment, internet connectivity and systems properly to access, download and view such products, content, materials or other Items or services.
Designated Agent for Copyright Notification
If you believe that any content on the Platform infringes your copyright rights, please contact our designated agent for receiving such notifications in writing as follows:
6007 Sepulveda Blvd.
Van Nuys, California 91411
Email address: [email protected]
Your communication must comply with the “Elements of Notification” requirements set forth in 17 U.S.C. § 512.
3. System Requirements
You are responsible for ensuring that your computer system meets all relevant technical specifications necessary to use, and is compatible with, the Platform. We will take reasonable care to ensure but do not promise that the Platform or its servers are or will remain free from viruses, worms, cancelbots, “Trojan Horses” or anything else that has contaminating or destructive properties. We shall not be liable for any damage to, or viruses that may infect your computer equipment or other property following your access to, use of, or browsing on the Platform or accessing of any content, information, material, software or other item or service. You are responsible for implementing sufficient procedures and virus checks (including anti-virus and other security checks) to satisfy your particular requirements for the accuracy, reliability, integrity and security of data input and output.
4. Third Party Sites
We do not endorse and are not responsible for the contents or privacy practices of any third party web sites which may be linked to on the Platform. We shall not be responsible or liable for any loss or damages caused by use of or reliance on any content, goods or services available on such websites.
If you choose to communicate with us, you expressly consent to us contacting you in the manner you request; however, we will send you information relating to your account in electronic form only, for example via emails to your email address provided during registration. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
6. Indemnity and Hold Harmless
By using the Platform, you agree that you will defend, indemnify and hold harmless us and our subsidiaries and Affiliates, their respective licensors, partners and advertising and promotions agencies, from and against all the liabilities, claims, damages and expenses (including reasonable attorneys’ fees and costs) arising out of any use of the Platform by or through you including any of the Platform features, services or content, your breach or alleged breach of these Terms, and/or your breach or alleged violation of the patent, copyright, trademark, proprietary or other rights of third parties. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and, in such case, you shall agree to cooperate with our defense of such claim.
THE PLATFORM AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE PLATFORM, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. INDUSTRIAL MEDIA DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL INDUSTRIAL MEDIA, OR ITS AFFILIATES OR SUBSIDIARIES OR ANY OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
8. Arbitration Agreement
Should you elect to seek arbitration or file a small claim court action, you must first send to Industrial Media, by certified mail, a written Notice of your claim (“Notice”). The Notice to Industrial Media must be addressed to: Industrial Media Inc., Attn: Business & Legal Affairs, 6007 Sepulveda Blvd., Van Nuys, California 91411 (“Notice Address”). Should Industrial Media decide to initiate arbitration, it will send a written Notice to the email address used for your account. A Notice, whether sent by you or by Industrial Media, must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). If Industrial Media and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Industrial Media may commence an arbitration proceeding or file a claim in small claim court.
Copies of form Notices and forms to initiate arbitration are available for download at https://www.jamsadr.com/adr-forms/. If you are required to pay a filing fee, after Industrial Media receives notice at the Notice Address that you have commenced arbitration, we will reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000, in which event you will be responsible for filing fees.
If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision explaining the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules.
YOU AND INDUSTRIAL MEDIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Industrial Media agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
9. Additional Terms
From time to time, we may ask you to agree to further terms and conditions relating to additional services that we may make available through the Platform, for example in relation to the submission of materials (including audition materials), entering into competitions or purchasing Items or services from us. In these circumstances, these Terms will continue to apply; however, in the event of any conflict between these Terms and any terms and conditions relating to such additional services, the terms and conditions relating to the additional services shall prevail.
These terms and conditions are personal to you and are entered into by you for your own benefit and not for the benefit of any third party. We reserve the right to assign or sub-contract any or all of our rights and obligations under these terms and conditions, including an assignment to a subsequent owner, co-owner or operator in connection with a merger, acquisition or sale of all or substantially all of our assets, or our assets related to the Platform. In the event of such a merger, acquisition or sale, your continued use of the Platform signifies your agreement to be bound by the applicable terms and conditions and privacy policies of such subsequent owner, co-owner or operator.
These terms and conditions are governed by and are to be construed in accordance with California law. You agree that the courts of California shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with these terms and conditions.
Waiver And Severance
In the event that any provision (or any part of such provision) of these terms and conditions is held to be illegal, invalid or unenforceable, such provision (or part) will be severed and: (1) it shall be deemed replaced by an alternative provision (or part) which approximates as closely as lawfully possible in terms of substance and effect the provision or part severed; and (2) the remainder of these terms and conditions shall continue in full force and effect.
Save as otherwise expressly stated, these terms and conditions contain the entire agreement between us and you relating to your access to and use of the Platform and supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between us and you.
If you breach these terms and conditions and we take no action against you, we will still be entitled to enforce our rights against you in relation to that breach subsequently and to use our rights and remedies in any other situation where you breach these terms and conditions.
We reserve the right to update these Terms at any time. If we do so, we will publish the amended version on the Platform. The amended Terms will take effect from the time they are first published on the Platform, and from then on will govern the relationship between you and us in respect of your use of the Platform. If you do not agree with the amended Terms, please do not use the Platform.
12. Contact Us
If you have any questions, complaints or comments concerning the services provided on the Platform, please contact us at [email protected]